*/
Few areas of criminal law stir as much controversy as the principle of joint enterprise – also known as secondary liability or complicity. For years, lawyers, academics, politicians, campaigners and families have criticised the law, the racial disproportionality in its use and the prosecution practices that unfold in court. A report by the legal charity APPEAL – known for fighting to overturn wrongful convictions such as that of Andrew Malkinson – adds further weight to those concerns.
Published in June 2025, Joint Enterprise on Trial draws on six months of court observation at the Old Bailey. As researchers at APPEAL, we observed 17 murder and attempted murder trials – 16 prosecuted under joint enterprise and one as a conspiracy. Across these trials, there were 63 defendants: 80% were from racially minoritised backgrounds, and 60% were Black. Three-quarters were aged 25 or under; nearly 40% were children.
Despite the seriousness of the charges, our observations show the law being stretched far beyond what the principle of complicity ought to entail. We saw prosecutors casting an unreasonably wide net: sweeping in defendants with tenuous connections to the offence and relying on flimsy circumstantial evidence.
In one case, a defendant faced seven charges – six were thrown out mid-trial by the judge for lack of evidence. Another case involved seven boys, still in school at the time of the offence, charged with murder largely based on their ‘voluntary presence’ at the scene. The prosecution could not say who inflicted the single fatal stab wound, precisely where each defendant was at the moment of the stabbing, nor even if they were facing the right direction to witness it. Six of the seven boys were acquitted after spending around 14 months in custody.
Of the 33 secondary parties tried across the 16 joint enterprise cases, only eight were convicted of murder or attempted murder – revealing a significant mismatch between the severity of the charges and the evidential basis supporting them. In a third of the cases, there was not a single conviction at all for the most serious offence on the indictment.
Time and again, we heard prosecutors rely on sweeping narratives to fill evidential gaps. Speculative chains of inference and broad-brush language – such as ‘in it together’, ‘force of numbers’ and other vague phrases – were used to gloss over the absence of clear acts of assistance or encouragement. These ambiguous slogans became substitutes for evidence, collapsing meaningful distinctions between the roles of individual defendants.
For example, in one case – a shooting in which four defendants were charged with attempted murder – the prosecution framed the group as operating as a ‘team’. When attempting to demonstrate participation, the Crown emphasised that ‘numbers matter’ but failed to specify any clear or demonstrable acts of assistance or encouragement. In another case, a 28-second inaudible phone call between two defendants was held up as evidence of ‘coordinated planning’. All defendants in that case, including the alleged principal, were acquitted of murder.
With weak evidence and unclear conduct, the courtroom became a stage for narrative performance – where the power of case theory, not the strength of the evidence, often drove the case.
For decades, joint enterprise has been applied in a starkly racialised and disproportionate manner, with young Black men and children overrepresented among those prosecuted and convicted. Critics and researchers have long attributed this to the discriminatory and racialised use of gang narratives and gang evidence by prosecutors.
In our study, the word ‘gang’ was explicitly used in just five of the 17 cases. But this did not mean the gang narrative was absent. Prosecution storytelling remained deeply entangled with racialised constructions of crime and criminality. Language was strategically employed to provoke fear, while references to the defendants as a ‘team’ served as a stand-in for the word ‘gang’.
The gang narrative was also subtly evoked during the cross-examination of defendants, particularly through questions about drug dealing and territory – even when these topics had no obvious relevance to the facts of the case. These tactics allowed the prosecution to benefit from the powerful connotations of the gang narrative while avoiding the scrutiny that direct usage of the label might attract.
At the same time, prosecution case theory derived its power from the courtroom’s structural dynamics – where Whiteness, professionalism and legitimacy are deeply intertwined. While there are ongoing efforts by the Bar and judiciary in ensuring the institutions reflect the society they represent, in the courtrooms we observed, 84% of barristers were White. Yet 60% of the defendants were Black. The courtroom, in its architecture, dynamics and traditions, reflected what we term ‘institutional Whiteness’.
This imbalance shaped how proceedings unfolded – from how evidence was (mis)interpreted to the expectations placed on defendants. While greater diversity cannot solve racial injustice, lawyers from underrepresented backgrounds occasionally brought important cultural insight – equipping them to identify and challenge potential misinterpretations of evidence.
Joint enterprise trials are among the most resource-intensive in the criminal legal system. During our observation period, up to a third of Old Bailey courtrooms were occupied by such trials. Two of the trials were four months long and ended in more acquittals than convictions.
The costs, both human and economic, are staggering. We estimate that around 54 years (20,000 days) were spent on remand by defendants in the trials observed. Of this, 19 years (7,000 days) were spent by individuals who were either not convicted or not sentenced to custody – at an estimated cost of between £1 million and £2.2 million. These are not just numbers; they reflect lives disrupted, families upended and resources wasted. And this is just six months in one courtroom in the country.
One proposed response to the backlog crisis is to reclassify offences to reduce reliance on jury trials. This undermines a long-standing legal safeguard, while failing to address a key driver of inefficiency: the overuse and misuse of joint enterprise.
APPEAL’s report calls for urgent reform: the inappropriate overuse of the law must end. We join calls for legislative reform to narrow the scope of the law and create a safer framework for prosecution. If the use of joint enterprise continues, it must function as a proper doctrine of complicity – in law and in practice – grounded in a clear requirement of intent to assist or encourage the principal offence, while making a significant contribution to the crime. Anything less encourages inappropriate, costly prosecutions and wrongful convictions.
We also recognise that legislative change alone is not enough and may be slow to materialise. The CPS, police and judiciary all play a critical role in how the law is applied and must be held accountable.
At the end of 2025, APPEAL will convene a roundtable with key stakeholders – including legal professionals, academics and individuals directly affected by joint enterprise – to develop workable recommendations for reform. For barristers, whether prosecuting or defending, this report should be essential reading. It invites us to scrutinise how the most serious allegations are prosecuted – and to ask whether current practices are delivering justice or merely performing it.
Dr Nisha Waller and Tehreem Sultan, Joint Enterprise on Trial: A wide net cast on weak grounds, APPEAL, June 2025
Dr Nisha Waller leads APPEAL’s work on racial justice which aims to raise awareness of and challenge discriminatory practices in the criminal legal system. Her work involves conducting and overseeing the development of research which informs campaigns for justice and meaningful change.
Few areas of criminal law stir as much controversy as the principle of joint enterprise – also known as secondary liability or complicity. For years, lawyers, academics, politicians, campaigners and families have criticised the law, the racial disproportionality in its use and the prosecution practices that unfold in court. A report by the legal charity APPEAL – known for fighting to overturn wrongful convictions such as that of Andrew Malkinson – adds further weight to those concerns.
Published in June 2025, Joint Enterprise on Trial draws on six months of court observation at the Old Bailey. As researchers at APPEAL, we observed 17 murder and attempted murder trials – 16 prosecuted under joint enterprise and one as a conspiracy. Across these trials, there were 63 defendants: 80% were from racially minoritised backgrounds, and 60% were Black. Three-quarters were aged 25 or under; nearly 40% were children.
Despite the seriousness of the charges, our observations show the law being stretched far beyond what the principle of complicity ought to entail. We saw prosecutors casting an unreasonably wide net: sweeping in defendants with tenuous connections to the offence and relying on flimsy circumstantial evidence.
In one case, a defendant faced seven charges – six were thrown out mid-trial by the judge for lack of evidence. Another case involved seven boys, still in school at the time of the offence, charged with murder largely based on their ‘voluntary presence’ at the scene. The prosecution could not say who inflicted the single fatal stab wound, precisely where each defendant was at the moment of the stabbing, nor even if they were facing the right direction to witness it. Six of the seven boys were acquitted after spending around 14 months in custody.
Of the 33 secondary parties tried across the 16 joint enterprise cases, only eight were convicted of murder or attempted murder – revealing a significant mismatch between the severity of the charges and the evidential basis supporting them. In a third of the cases, there was not a single conviction at all for the most serious offence on the indictment.
Time and again, we heard prosecutors rely on sweeping narratives to fill evidential gaps. Speculative chains of inference and broad-brush language – such as ‘in it together’, ‘force of numbers’ and other vague phrases – were used to gloss over the absence of clear acts of assistance or encouragement. These ambiguous slogans became substitutes for evidence, collapsing meaningful distinctions between the roles of individual defendants.
For example, in one case – a shooting in which four defendants were charged with attempted murder – the prosecution framed the group as operating as a ‘team’. When attempting to demonstrate participation, the Crown emphasised that ‘numbers matter’ but failed to specify any clear or demonstrable acts of assistance or encouragement. In another case, a 28-second inaudible phone call between two defendants was held up as evidence of ‘coordinated planning’. All defendants in that case, including the alleged principal, were acquitted of murder.
With weak evidence and unclear conduct, the courtroom became a stage for narrative performance – where the power of case theory, not the strength of the evidence, often drove the case.
For decades, joint enterprise has been applied in a starkly racialised and disproportionate manner, with young Black men and children overrepresented among those prosecuted and convicted. Critics and researchers have long attributed this to the discriminatory and racialised use of gang narratives and gang evidence by prosecutors.
In our study, the word ‘gang’ was explicitly used in just five of the 17 cases. But this did not mean the gang narrative was absent. Prosecution storytelling remained deeply entangled with racialised constructions of crime and criminality. Language was strategically employed to provoke fear, while references to the defendants as a ‘team’ served as a stand-in for the word ‘gang’.
The gang narrative was also subtly evoked during the cross-examination of defendants, particularly through questions about drug dealing and territory – even when these topics had no obvious relevance to the facts of the case. These tactics allowed the prosecution to benefit from the powerful connotations of the gang narrative while avoiding the scrutiny that direct usage of the label might attract.
At the same time, prosecution case theory derived its power from the courtroom’s structural dynamics – where Whiteness, professionalism and legitimacy are deeply intertwined. While there are ongoing efforts by the Bar and judiciary in ensuring the institutions reflect the society they represent, in the courtrooms we observed, 84% of barristers were White. Yet 60% of the defendants were Black. The courtroom, in its architecture, dynamics and traditions, reflected what we term ‘institutional Whiteness’.
This imbalance shaped how proceedings unfolded – from how evidence was (mis)interpreted to the expectations placed on defendants. While greater diversity cannot solve racial injustice, lawyers from underrepresented backgrounds occasionally brought important cultural insight – equipping them to identify and challenge potential misinterpretations of evidence.
Joint enterprise trials are among the most resource-intensive in the criminal legal system. During our observation period, up to a third of Old Bailey courtrooms were occupied by such trials. Two of the trials were four months long and ended in more acquittals than convictions.
The costs, both human and economic, are staggering. We estimate that around 54 years (20,000 days) were spent on remand by defendants in the trials observed. Of this, 19 years (7,000 days) were spent by individuals who were either not convicted or not sentenced to custody – at an estimated cost of between £1 million and £2.2 million. These are not just numbers; they reflect lives disrupted, families upended and resources wasted. And this is just six months in one courtroom in the country.
One proposed response to the backlog crisis is to reclassify offences to reduce reliance on jury trials. This undermines a long-standing legal safeguard, while failing to address a key driver of inefficiency: the overuse and misuse of joint enterprise.
APPEAL’s report calls for urgent reform: the inappropriate overuse of the law must end. We join calls for legislative reform to narrow the scope of the law and create a safer framework for prosecution. If the use of joint enterprise continues, it must function as a proper doctrine of complicity – in law and in practice – grounded in a clear requirement of intent to assist or encourage the principal offence, while making a significant contribution to the crime. Anything less encourages inappropriate, costly prosecutions and wrongful convictions.
We also recognise that legislative change alone is not enough and may be slow to materialise. The CPS, police and judiciary all play a critical role in how the law is applied and must be held accountable.
At the end of 2025, APPEAL will convene a roundtable with key stakeholders – including legal professionals, academics and individuals directly affected by joint enterprise – to develop workable recommendations for reform. For barristers, whether prosecuting or defending, this report should be essential reading. It invites us to scrutinise how the most serious allegations are prosecuted – and to ask whether current practices are delivering justice or merely performing it.
Dr Nisha Waller and Tehreem Sultan, Joint Enterprise on Trial: A wide net cast on weak grounds, APPEAL, June 2025
Justice system requires urgent attention and next steps on the Harman Review
Q&A with Tim Lynch of Jordan Lynch Private Finance
By Marie Law, Director of Toxicology at AlphaBiolabs
By Louise Crush of Westgate Wealth Management
Why Virtual Assistants Can Meet the Legal Profession’s Exacting Standards
Despite increased awareness, why are AI hallucinations continuing to infiltrate court cases at an alarming rate? Matthew Lee investigates
Many disabled barristers face entrenched obstacles to KC appointment – both procedural and systemic, writes Diego F Soto-Miranda
The proscribing of Palestine Action under the Terrorism Act is an assault on the English language and on civil liberties, argues Paul Harris SC, founder of the Bar Human Rights Committee
For over three decades, the Bar Mock Trial Competition has boosted the skills, knowledge and confidence of tens of thousands of state school students – as sixth-form teacher Conor Duffy and Young Citizens’ Akasa Pradhan report
Suzie Miller’s latest play puts the legal system centre stage once more. Will it galvanise change? asks Rehna Azim
